Judge: Latrice A. G. Byrdsong, Case: 19STLC01363, Date: 2023-11-13 Tentative Ruling

Case Number: 19STLC01363    Hearing Date: November 13, 2023    Dept: 25

Hearing Date:                         Monday, November 13, 2023

Case Name:                             AMICA MUTUAL INSURANCE COMPANY AS SUBROGEE OF ITS INSURED, THOMAS M. HINCKLEY v. ELIZABETH MACHUCA and DOES 1-10

Case No.:                                19STLC01363

Motion:                                   Motion to Set Aside/Vacate Default Judgment

Moving Party:                         Defendant Elizabeth Machuca

Responding Party:                   Plaintiff Amica Mutual Insurance Company

Notice:                                    OK

Tentative Ruling:           Defendant Elizabeth Machuca’s Motion to Set Aside/Vacate Default Judgment is DENIED.

BACKGROUND

On February 6, 2019, Plaintiff Amica Mutual Insurance Company (“Plaintiff”) as a Subrogee of its insured, Thomas M. Hinckley filed Subrogation action against Defendant Elizabeth Machuca (“Defendant”) and DOES 1-10, inclusive, stemming from an automobile collision between Defendant and Plaintiff’s insured, Thomas M. Hinckley that occurred on February 17, 2016. Plaintiff alleges that it compensated Mr. Hinckley for claimed damages of $7,539.10 and sought recovery in that amount from Defendant.

On June 20, 2019, this Court entered default judgment against Defendant in favor of Plaintiff in the total judgment amount of $7,845.15.

On July 18, 2023, Defendant filed a Motion to Set Aside/Vacate Default Judgment. On August 15, 2023, Plaintiff filed an opposition. No reply has been filed.

MOVING PARTY POSITION

            Defendant moves to vacate the default judgment entered on June 20, 2019. Defendant makes this instant motion pursuant the Code of Civil Procedure, Section 473.5 on the grounds that she did not receive actual notice.

OPPOSITION

            In Opposition, Plaintiff  argues that Defendant fails to meet her burden of proof regarding lack of notice. Plaintiff also argues that Defendant’s motion is untimely. Furthermore, Plaintiff argues that Defendant did not demonstrate diligence in seeking to set aside the default judgment. Moreover, Plaintiff asserts that Defendant failed to file a proper motion and is in violation of California Rules of Court regarding rules for the contents of memorandum of points and authorities. Additionally, Plaintiff contends that Defendant neglected to attach a copy of her proposed responsive pleading to her motion.

REPLY

None as of 11/7/23.

ANALYSIS

I.          Motion to Set Aside/Vacate Default Judgment

A.                Legal Standard

Pursuant the Code of Civil Procedure (CCP), Section 473.5(a), “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”  (CCP § 473.5(a).) 

“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (CCP § 473.5(b).)

B.              Discussion

Here, Defendant Elizabeth Machuca (“Defendant”) moves to vacate the judgment entered in this matter on grounds that she did not have actual notice of the action. The Court entered default judgment against Defendant on June 20, 2019, in favor of Plaintiff Amica Mutual Insurance Company (“Plaintiff”) in the total judgment amount of $7,845.15. (Default Judgment by Court 6/20/19.) Based on the date of default judgment, Defendant had until June 20, 2021 to file a motion to set aside/vacate default judgment because it would be within the two (2) year limit set by statute or 180 days after service on her of a written notice that the default judgment had been entered. (CCP § 473.5(a).) Defendant filed this instant motion on July 18, 2023, which makes this motion untimely because it was filed past the two years or 180 days’ time limit required by statute. However, Plaintiff has filed an opposition, thus the motion shall be addressed on the merits.

In opposition, Plaintiff  argues that Defendant fails to meet her burden of proof regarding lack of notice. Plaintiff contends that Defendant was personally served with Summons and Complaint on March 13, 2019 and failed to do anything until now. Plaintiff also argues that Defendant’s motion is untimely because Defendant waited over four years after entry of judgment to bring this instant motion, which has been addressed above. Furthermore, Plaintiff argues that Defendant did not demonstrate diligence in seeking to set aside the default judgment. Moreover, Plaintiff asserts that Defendant failed to file a proper motion under California Rules of Court, Rule 3.1112 because (1) Defendant’s motion incorrectly lists Plaintiff’s counsel, Steven A. Booska as the Plaintiff; and (2) there’s no official notice, memorandum of points and authorities, proposed order, and no proof of service as required under California law. Plaintiff further asserts that Defendant has failed to supply a statement of facts nor combine the law with her evidence as required for a memorandum of points and authorities. Additionally, Plaintiff contends that Defendant neglected to attach a copy of her proposed responsive pleading to her motion required under CCP, Section 473(b).

Therefore, the Court finds that an order setting or vacating default judgment is not warranted under the law because Defendant’s motion is untimely, unaccompanied by an affidavit or declaration showing under oath that her lack of notice was not caused by her avoidance of service or inexcusable neglect, does not have a proposed answer or other pleading attached, and does not contain a memorandum of points and authorities required under statute.

II.        Conclusion

            Accordingly, Defendant Elizabeth Machuca’s Motion to Set Aside/Vacate Default Judgment is DENIED.